Citation Nr: 0419269
Decision Date: 07/16/04 Archive Date: 07/27/04
DOCKET NO. 92-23 566 ) DATE
)
)
On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO) in
New York, New York
THE ISSUES
1. Entitlement to service connection for perforated
diverticulitis, status post exploratory laparatomy
(hereinafter residuals of perforated diverticulitis).
2. Entitlement to a temporary total rating based on
hospitalization from May 6, 1991, to November 29, 1991.
REPRESENTATION
Veteran represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
D. Schechter, Counsel
INTRODUCTION
The veteran served on active military duty from October 1940
to July 1945.
By a July 1992 RO decision, service connection for a stomach
disability (perforated diverticulitis, status post
exploratory laparotomy), claimed as due to a service-
connected psychiatric disability, and entitlement to a total
disability rating under 38 C.F.R. § 4.29 were denied. In
August 1992, the representative filed a timely notice of
disagreement with the July 1992 RO decision. In a July 1994
remand, the Board indicated that the veteran had not yet been
issued a supplemental statement of the case (not a statement
of the case) with regard to the aforementioned claims. In
addition, the Board requested that certain evidentiary
development be completed. In September 1997, the RO
readjudicated the claims, and that same month a supplemental
statement of the case was issued to the veteran. In a
November 1999 decision-remand, the Board correctly indicated
that the veteran had never been issued a statement of the
case with regard to his claim for service connection or for
his claim for a total disability rating under 38 C.F.R.
§ 4.29, and indicated he had not timely appealed his claims.
The Board also acknowledged that various letters
(accompanying supplemental statements of the case) suggested
to the veteran that his appeal had been indeed perfected.
Given such, it was determined that the claims were properly
on appeal. Assuming jurisdiction over these claims, the
Board, in its November 1999 remand, directed that further
evidentiary development be completed.
In October 2003, the RO granted service connection for
irritable bowel syndrome (IBS) (previously characterized as
perforated diverticulitis, status post exploratory laparotomy
as secondary to a service-connected nervous disorder)
effective November 25, 1991. In the decision, the RO
indicated that the grant of service connection constituted a
full grant of benefits on appeal. In January 2004, the RO
issued another supplemental statement of the case regarding
the veteran's claims of service connection and for a total
rating, suggesting that the matter was still on appeal. The
Board agrees. The veteran has not withdrawn either of his
claims.
In June 2004, the veteran's representative filed a motion to
advance the case on the Board's docket due to advancing age.
The Board granted this motion.
Further development of the temporary total rating issue is
necessary before actually deciding the appeal. So, for the
reasons explained below, the case must be remanded to the RO
via the Appeals Management Center (AMC) in Washington, DC.
VA will notify you if further action is required on your
part.
FINDING OF FACT
The veteran does not have current residuals of perforated
diverticulitis, status post exploratory laparotomy.
CONCLUSION OF LAW
Perforated diverticulitis, status post exploratory
laparotomy, was not incurred in or aggravated by service, and
was not caused or aggravated by a service-connected
psychiatric disability. 38 U.S.C.A. §§ 1110, 1131 (West
2002); 38 C.F.R. §§ 3.303, 3.310 (2003).
REASONS AND BASES FOR FINDING AND CONCLUSION
Veterans Claims Assistance Act (VCAA)
There has been a significant change in the law during the
pendency of this appeal with the enactment of the VCAA.
38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126
(West 2002). Regulations implementing the VCAA are now
published at 66 Fed. Reg. 45,620, 45,630-32 (August 29, 2001)
(38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326). Except as
specifically noted, the new regulations are effective
November 9, 2000. This law eliminates the concept of a well-
grounded claim, redefines the obligations of VA with respect
to the duty to assist, and supersedes the decision of the
United States Court of Appeals for Veterans Claims in Morton
v. West, 12 Vet. App. 477 (1999), withdrawn sub nom. Morton
v. Gober, No. 96-1517 (U.S. Vet. App. Nov. 6, 2000) (per
curiam order) (holding that VA cannot assist in the
development of a claim that is not well grounded). The new
law also includes an enhanced duty to notify a claimant as to
the information and evidence necessary to substantiate a
claim for VA benefits.
First, VA has a duty to notify the veteran and his
representative, if represented, of any information and
evidence needed to substantiate and complete a claim.
38 U.S.C.A. §§ 5102, 5103. He was properly notified of the
outcome as well as the reasoning behind the July 1992 RO
decision. The Board concludes that the discussion in the
July 1992 RO decision, supplemental statements of the case
(SSOC) (issued in September 1997, January 1999, and January
2004) and numerous letters over the years (including the
March 2001 and January 2003 VCAA letters) informed the
veteran of the information and evidence needed to
substantiate his claim and complied with VA's notification
requirements. Specifically, the Board concludes that the RO
decision, SSOCs, and various letters informed him of: why
the evidence on file was insufficient to grant service
connection; what evidence the record revealed; what VA was
doing to develop the claim; and what information and evidence
was needed to substantiate his claim. The March 2001 and
January 2003 VCAA letters specifically informed him of what
he should do in support of the claim, where to send the
evidence, and what he should do if he had questions or needed
assistance. Quartuccio v. Principi, 16 Vet. App. 183 (2002).
He was for the most part informed to submit everything he had
with regard to his claim of service connection.
In Pelegrini v. Principi, No. 01-944 (U.S. Vet. App. June 24,
2004), the Court held, in part, that VCAA notice, as required
by 38 U.S.C.A. § 5103, must be provided to a claimant before
the initial unfavorable agency of original jurisdiction (AOJ
or RO) decision on a claim for VA benefits. In the instant
case, it is acknowledged that the 2003 and 2004 VCAA letters
were issued following the RO decision which denied the claim
on appeal; regardless, no prejudice has occurred. The Board
finds that any defect with respect to the VCAA notice
requirement in this case was harmless error. Under the facts
of this case, "the record has been fully developed," and "it
is difficult to discern what additional guidance VA could
have provided to the veteran regarding what further evidence
he should submit to substantiate his claim." Conway v.
Principi, 353 F.3d 1369 (Fed. Cir. 2004). Further, the
veteran has been provided with every opportunity to submit
evidence and argument in support of his claim.
Second, VA has a duty to assist the veteran in obtaining
evidence necessary to substantiate the claim. 38 U.S.C.A.
§ 5103A. In the instant case, VA has made exhaustive efforts
to develop the record. All relevant medical records are on
file, including his VA medical records. In addition, the
veteran has been scheduled and has undergone multiple VA
examinations which address the etiology of the disability at
issue. In April 2002, the veteran underwent a VA psychiatric
examination; and in April 2003 and September 2003, opinions
were provided by a VA gastroenterologist. In sum, the Board
finds that the record contains sufficient evidence to make a
decision on the claim. VA has fulfilled its duty to assist
with regard to the veteran's claim.
In the circumstances of this case, a remand would serve no
useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540,
546 (1991) (strict adherence to requirements in the law does
not dictate an unquestioning, blind adherence in the face of
overwhelming evidence in support of the result in a
particular case; such adherence would result in unnecessarily
imposing additional burdens on VA with no benefit flowing to
the veteran); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994)
(remands which would only result in unnecessarily imposing
additional burdens on VA with no benefit flowing to the
veteran are to be avoided). As all notification has been
given and all relevant available has been obtained, the Board
concludes that any deficiency in compliance with the VCAA
would not prejudice the veteran and would be harmless error.
See Bernard v. Brown, 4 Vet. App. 384 (1993). VA has
satisfied its duties to notify and to assist the veteran in
this case.
In order to establish service connection for a disability,
there must be objective evidence that establishes that the
disability either began in or was aggravated by service. 38
U.S.C.A. § 1110, 1131. Secondary service connection may be
granted where the evidence shows that a chronic disability
has been caused or aggravated by a service-connected
disability. 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App.
439 (1995).
To establish service connection for a disability, a claimant
must submit (1) medical evidence of a current disability, (2)
medical evidence, or in certain circumstances lay testimony,
of in-service incurrence or aggravation of an injury or
disease, and (3) medical evidence of a nexus between the
current disability and the in-service disease or injury. See
Pond v. West, 12 Vet. App. 341, 346 (1999).
If there is no evidence of a chronic condition during
service, or an applicable presumption period, then a showing
of continuity of symptomatology after service is required to
support the claim. 38 C.F.R. § 3.303(b). Evidence of a
chronic condition must be medical, unless it relates to a
condition to which lay observation is competent. Savage v.
Gober, 10 Vet. App. 488, 495-498 (1997). If service
connection is established by continuity of symptomatology,
there must be medical evidence that relates a current
condition to that symptomatology. Id.
As an initial matter, it is noted that service connection for
IBS was granted in an October 2003 decision. The present
appeal before the Board is whether the veteran is entitled to
service connection for another gastrointestinal disability,
namely residuals of perforated diverticulitis, status post
exploratory laparatomy. There are a multitude of opinions on
file regarding the nature and etiology of the veteran's
gastrointestinal health.
A May 1995 VA intestine compensation examination shows that
the veteran was diagnosed as having a history of ruptured
diverticulosis. No opinion was provided as to the etiology
of such. In an April 2003 opinion, a VA gastroenterologist
indicated that there was no need to go through the veteran's
medical history as she had treated the veteran for fifteen
years. (In other words, she indicated that given the fact
that she had been the veteran's treating physician for many
years she was in a good position to personally know the
veteran's medical history.) She opined that the veteran had
gastroesophageal reflux disease (GERD) and IBS and that all
of his symptoms were functional. It was opined that his
service-connected psychiatric disability had aggravated his
GERD and IBS. In September 2003, she provided an addendum to
her April 2003 opinion. In this September 2003 opinion, it
was noted that she had now reviewed the veteran's
gastrointestinal medical history. The examiner indicated
that the veteran did not have diverticulitis but IBS with
constipation. It was pointed that the veteran had not have
diverticulosis now or within the fifteen years she had been
treating him.
The Board finds that the 2003 conclusions of the VA
gastroenterologist have tremendous probative value. First,
it is noted that her opinions are based not only on an
interview and evaluation of the veteran but also on a long
history of having treated the veteran for 15 years. Second,
it is noted that she had access to the claims folder when
rendering her opinion. Her opinion regarding an etiological
relationship between the veteran's service-connected
psychiatric disability and his IBS is acknowledged. Based on
this opinion, the RO granted service connection for IBS. The
question presently before the Board is, however, whether he
has residuals of perforated diverticulitis which is related
to an injury or disease in service or to a service-connected
disability, and the answer is no. The medical evidence on
file establishes that he does not currently have residuals of
perforated diverticulitis. In fact the 2003 VA examiner
specifically indicated that he had not had such for the last
15 years. While the veteran had this condition in 1991, it
appears that this condition was acute and transitory and
resolved following surgery.
The Court has stated that "Congress specifically limits
entitlement for service-connected disease or injury to cases
where such incidents have resulted in a disability," and held
that "[i]n the absence of proof of a present disability[,]
there can be no valid claim." Brammer v. Derwinski, 3 Vet.
App. 223, 225 (1992) (emphasis added); Rabideau v. Derwinski,
2 Vet. App. 141, 143-44 (1992). Because there is no evidence
of a current and competent diagnosis of residuals of
perforated diverticulitis, the claim of service connection
must be denied.
The veteran's statements, in support of his claim, which are
to the effect that he has residuals of perforated
diverticulitis are not cognizable evidence since, as a
layman, he has no competence to give a medical opinion on the
diagnosis or etiology of the disorder. Espiritu v.
Derwinski, 2 Vet. App. 492 (1992).
Because the preponderance of the evidence is against the
claim, the benefit of the doubt doctrine does not apply. 38
U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49
(1990).
ORDER
Entitlement to service connection for residuals of perforated
diverticulitis, status post exploratory laparatomy, is
denied.
REMAND
The veteran was hospitalized at a VA facility from May 6,
1991, to November 29, 1991. He underwent several procedures
including an exploratory laparotomy, sigmoid resection and a
colostomy. It is unclear whether his VA hospitalization
involved treatment for service-connected irritable bowel
syndrome. As there is insufficient evidence on file to make
a determination in the veteran's claim for a temporary total
rating based on hospitalization from May 6, 1991, to November
29, 1991, the claim must be remanded.
This case is REMANDED for the following reasons:
1. The RO or AMC must review the claims
file and ensure that all obligations
under the Veterans Claims Assistance Act
of 2000 have been satisfied.
2. The claims folder should be forwarded
to the examiner who prepared the April
2003 and September 2003 VA examination
reports (E.W., M.D.), if possible. If
this is not possible, the claims folder
should be forwarded to another VA
physician. The claims folder should be
reviewed in conjunction with the
examination. The examiner should be
asked to identify whether the veteran's
VA hospitalization (from May 6, to
November 29, 1991) involved treatment for
his service-connected irritable bowel
syndrome. A complete rational for any
opinion expressed should be included in
the examination report.
3. Thereafter, the claim should be
reviewed with application of all
appropriate laws and regulations and
consideration of any additional
information obtained. If the decision
with respect to the claim remains adverse
to the veteran, he and his representative
should be furnished a supplemental
statement of the case and afforded a
reasonable period of time within which to
respond thereto.
Thereafter, the case should be returned to the Board for
further appellate consideration. The veteran has the right
to submit additional evidence and argument on the matter or
matters the Board has remanded. Kutscherousky v. West, 12
Vet. App. 369 (1999).
This claim must be afforded expeditious treatment by the RO.
The law requires that all claims that are remanded by the
Board of Veterans' Appeals or by the United States Court of
Appeals for Veterans Claims for additional development or
other appropriate action must be handled in an expeditious
manner. See The Veterans
Benefits Act of 2003, Pub. L. No. 108-183, § 707(a), (b), 117
Stat. 2651 (2003) (to be codified at 38 U.S.C. §§ 5109B,
7112).
____________________________________________
K. Parakkal
Acting Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs
YOUR RIGHTS TO APPEAL OUR DECISION
The attached decision by the Board of Veterans' Appeals (BVA or Board) is
the final decision for all issues addressed in the "Order" section of the
decision. The Board may also choose to remand an issue or issues to the
local VA office for additional development. If the Board did this in your
case, then a "Remand" section follows the "Order." However, you cannot
appeal an issue remanded to the local VA office because a remand is not a
final decision. The advice below on how to appeal a claim applies only to
issues that were allowed, denied, or dismissed in the "Order."
If you are satisfied with the outcome of your appeal, you do not need to do
anything. We will return your file to your local VA office to implement
the BVA's decision. However, if you are not satisfied with the Board's
decision on any or all of the issues allowed, denied, or dismissed, you
have the following options, which are listed in no particular order of
importance:
? Appeal to the United States Court of Appeals for Veterans Claims
(Court)
? File with the Board a motion for reconsideration of this decision
? File with the Board a motion to vacate this decision
? File with the Board a motion for revision of this decision based on
clear and unmistakable error.
Although it would not affect this BVA decision, you may choose to also:
? Reopen your claim at the local VA office by submitting new and
material evidence.
There is no time limit for filing a motion for reconsideration, a motion to
vacate, or a motion for revision based on clear and unmistakable error with
the Board, or a claim to reopen at the local VA office. None of these
things is mutually exclusive - you can do all five things at the same time
if you wish. However, if you file a Notice of Appeal with the Court and a
motion with the Board at the same time, this may delay your case because of
jurisdictional conflicts. If you file a Notice of Appeal with the Court
before you file a motion with the BVA, the BVA will not be able to consider
your motion without the Court's permission.
How long do I have to start my appeal to the Court? You have 120 days from
the date this decision was mailed to you (as shown on the first page of
this decision) to file a Notice of Appeal with the United States Court of
Appeals for Veterans Claims. If you also want to file a motion for
reconsideration or a motion to vacate, you will still have time to appeal
to the Court. As long as you file your motion(s) with the Board within 120
days of the date this decision was mailed to you, you will then have
another 120 days from the date the BVA decides the motion for
reconsideration or the motion to vacate to appeal to the Court. You should
know that even if you have a representative, as discussed below, it is your
responsibility to make sure that your appeal to Court is filed on time.
How do I appeal to the United States Court of Appeals for Veterans Claims?
Send your Notice of Appeal to the Court at:
Clerk, U.S. Court of Appeals for Veterans Claims
625 Indiana Avenue, NW, Suite 900
Washington, DC 20004-2950
You can get information about the Notice of Appeal, the procedure for
filing a Notice of Appeal, the filing fee (or a motion to waive the filing
fee if payment would cause financial hardship), and other matters covered
by the Court's rules directly from the Court. You can also get this
information from the Court's web site on the Internet at
www.vetapp.uscourts.gov, and you can download forms directly from that
website. The Court's facsimile number is (202) 501-5848.
To ensure full protection of your right of appeal to the Court, you must
file your Notice of Appeal with the Court, not with the Board, or any other
VA office.
How do I file a motion for reconsideration? You can file a motion asking
the BVA to reconsider any part of this decision by writing a letter to the
BVA stating why you believe that the BVA committed an obvious error of fact
or law in this decision, or stating that new and material military service
records have been discovered that apply to your appeal. If the BVA has
decided more than one issue, be sure to tell us which issue(s) you want
reconsidered. Send your letter to:
Director, Management and Administration (014)
Board of Veterans' Appeals
810 Vermont Avenue, NW
Washington, DC 20420
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CONTINUED
Remember, the Board places no time limit on filing a motion for
reconsideration, and you can do this at any time. However, if you also plan
to appeal this decision to the Court, you must file your motion within 120
days from the date of this decision.
How do I file a motion to vacate? You can file a motion asking the BVA to
vacate any part of this decision by writing a letter to the BVA stating why
you believe you were denied due process of law during your appeal. For
example, you were denied your right to representation through action or
inaction by VA personnel, you were not provided a Statement of the Case or
Supplemental Statement of the Case, or you did not get a personal hearing
that you requested. You can also file a motion to vacate any part of this
decision on the basis that the Board allowed benefits based on false or
fraudulent evidence. Send this motion to the address above for the
Director, Management and Administration, at the Board. Remember, the Board
places no time limit on filing a motion to vacate, and you can do this at
any time. However, if you also plan to appeal this decision to the Court,
you must file your motion within 120 days from the date of this decision.
How do I file a motion to revise the Board's decision on the basis of clear
and unmistakable error? You can file a motion asking that the Board revise
this decision if you believe that the decision is based on "clear and
unmistakable error" (CUE). Send this motion to the address above for the
Director, Management and Administration, at the Board. You should be
careful when preparing such a motion because it must meet specific
requirements, and the Board will not review a final decision on this basis
more than once. You should carefully review the Board's Rules of Practice
on CUE, 38 C.F.R. 20.1400 -- 20.1411, and seek help from a qualified
representative before filing such a motion. See discussion on
representation below. Remember, the Board places no time limit on filing a
CUE review motion, and you can do this at any time.
How do I reopen my claim? You can ask your local VA office to reopen your
claim by simply sending them a statement indicating that you want to reopen
your claim. However, to be successful in reopening your claim, you must
submit new and material evidence to that office. See 38 C.F.R. 3.156(a).
Can someone represent me in my appeal? Yes. You can always represent
yourself in any claim before VA, including the BVA, but you can also
appoint someone to represent you. An accredited representative of a
recognized service organization may represent you free of charge. VA
approves these organizations to help veterans, service members, and
dependents prepare their claims and present them to VA. An accredited
representative works for the service organization and knows how to prepare
and present claims. You can find a listing of these organizations on the
Internet at: www.va.gov/vso. You can also choose to be represented by a
private attorney or by an "agent." (An agent is a person who is not a
lawyer, but is specially accredited by VA.)
If you want someone to represent you before the Court, rather than before
VA, then you can get information on how to do so by writing directly to the
Court. Upon request, the Court will provide you with a state-by-state
listing of persons admitted to practice before the Court who have indicated
their availability to represent appellants. This information is also
provided on the Court's website at www.vetapp.uscourts.gov.
Do I have to pay an attorney or agent to represent me? Except for a claim
involving a home or small business VA loan under Chapter 37 of title 38,
United States Code, attorneys or agents cannot charge you a fee or accept
payment for services they provide before the date BVA makes a final
decision on your appeal. If you hire an attorney or accredited agent within
1 year of a final BVA decision, then the attorney or agent is allowed to
charge you a fee for representing you before VA in most situations. An
attorney can also charge you for representing you before the Court. VA
cannot pay fees of attorneys or agents.
Fee for VA home and small business loan cases: An attorney or agent may
charge you a reasonable fee for services involving a VA home loan or small
business loan. For more information, read section 5904, title 38, United
States Code.
In all cases, a copy of any fee agreement between you and an attorney or
accredited agent must be sent to:
Office of the Senior Deputy Vice Chairman (012)
Board of Veterans' Appeals
810 Vermont Avenue, NW
Washington, DC 20420
The Board may decide, on its own, to review a fee agreement for
reasonableness, or you or your attorney or agent can file a motion asking
the Board to do so. Send such a motion to the address above for the Office
of the Senior Deputy Vice Chairman at the Board.
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